Rail Corporation NSW v Joape Tuwai

Introduction 1 The defendant, Joape Tuwai, brought proceedings against the plaintiff, Rail Corporation NSW, before the Workers Compensation Commission. Mr Tuwai's claim was determined by an arbitrator. He lodged an appeal. The parties agreed that the appeal should be determined on the papers. Before the appeal was decided, the parties reached agreement and executed short minutes of order. Subsequently, Acting Deputy President Snell determined the appeal. 2 Rail Corporation seeks declarations that the consent orders are binding on the parties and the Acting Deputy President's determination is void. First declaration 3 The Workplace Injury Management and Workers Compensation Act 1998, s 234 provides that it applies despite any contract to the contrary. There can be no contracting out of the Act. 4 Mr Tuwai accepts that he is bound by the short minutes of order but only up to 31 October 2007, the date upon which the short minutes of order were signed. He maintains that the agreement does not preclude any rights he might have in the future. 5 In Seaib v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36 at [77], Acting Deputy President Snell identified a number of principles from the authorities with respect to the legal consequences of prior settlements effected by consent awards. One of the propositions thus identified was that a res judicata estoppel created by a consent award operates up to the date it is made. It does not eliminate future rights. For that proposition the Acting Deputy President cited Almario v Carrington Constructions Pty Ltd (1996) 13 NSWCCR 739, Kaibau v Gillespie's Produce and Packing Pty Ltd [2006] NSWWCCPD 168, and W E Bromley Pty Ltd v Coggins [2006] NSWWCCPD 128. 6 Rail Corporation does not submit to the contrary. It accepts that if the agreement between the parties had sought to exclude Mr Tuwai's rights "forever and a day" that would have constituted contracting out of the Act and would have fallen foul of the Workplace Injury Management and Workers Compensation Act, s 234. 7 Mr Tuwai submits that, in the circumstances, the first declaration should not be made. There is no dispute between the parties and no good purpose is served by granting it. 8 I accept that submission. In such circumstances it is appropriate to refuse declaratory relief (Rivers v Bondi Junction - Waverly RSL Sub-branch Ltd (1986) 5 NSWLR 362). I decline to make the first declaration. Second declaration 9 The real issue between the parties is what should be done, in these unusual circumstances, about the second decision of the Commission, the decision of Acting Deputy President Snell. 10 The Workers Compensation Act 1987, s 66 provides for compensation for permanent impairment. Section 67 provides for compensation for pain and suffering resulting from permanent impairment. The agreement between the parties provided for compensation under both provisions. Section 66A(2) provides that if a worker enters into a complying agreement the above forms of compensation will be as agreed. The parties executed a complying agreement under that provision. 11 Evidence was led that the procedure for filing documents with the Workers Compensation Commission was for them to be delivered to the Registry and handed over the counter. No acknowledgment or receipt is received. The Registry seals the documents and later returns sealed copies to the solicitors. 12 On 2 November 2007, the solicitors for Rail Corporation prepared a covering letter addressed to the Commission stating that the duly executed short minutes of order was enclosed. On 5 November 2007 instructions were given to a filing clerk employed by the solicitors to lodge with the Commission "Correspondence to WCC dated 2 November 2007 attaching Short Minutes of Order". The clerk was instructed to receive two copies back from the registry. 13 On 28 November 2007 the solicitors received the decision of the Acting Deputy President. The decision of the arbitrator was revoked and the Acting Deputy President made orders for compensation for Mr Tuwai that differed from the agreement of the parties. 14 In response to a letter from the solicitors for Rail Corporation referring to the short minutes of order and stating that it was forwarded to the Commission on 2 November 2007, the Registrar of the Commission stated that the appeal filed in July 2007 was processed by Commission in the usual manner and allocated by the President to Acting Deputy President Snell who determined the appeal and issued his decision on 28 November 2007. The Registrar stated that the Commission had no record of ever having received the short minutes of order for filing, nor had it any record of receiving any notification from the parties that the matter had been resolved, prior to receipt of the letter under reply, after the appeal had been determined and the decision issued. The Registrar said that the issuing of the Acting Deputy President's decision finalised the proceedings that were before the Commission. 15 On behalf of Rail Corporation it was submitted that the agreement of the parties in the short minutes of order concluded the dispute between them and in the absence of a dispute the Commission lacked jurisdiction to determine the appeal. 16 The Workplace Injury Management and Workers Compensation Act, s 289(1) provides that a dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made disputes liability for the claim, wholly or in part, or fails to determine the claim as and when required by the Act. Section 289(2) provides likewise with respect to a dispute about a claim for medical expenses and s 289(3) contains similar restrictions in relation to a dispute about a claim for lump sum compensation. 17 It was submitted that the Commission is a creature of statute and lacks inherent jurisdiction. In Widdup v Hamilton [2006] NSWWCCPD 258, (2006) 5 DDCR 85 at [42], Sheehan P held that the Commission's jurisdiction to award compensation under the Workers Compensation Act, s 60 was limited by the express provisions of the legislation including the Workplace Injury Management and Workers Compensation Act, s 289(2) and there was no express or incidental power to make declaratory orders pursuant to s 60. 18 There is some difficulty with the submission that the Commission lacked jurisdiction to determine the appeal in light of its lack of knowledge that the parties had compromised their dispute. Further, the submission, if correct, does not lead inevitably to the Court making the second declaration. There is a privative provision within the legislation. 19 Before considering it, it is appropriate to deal with a second argument advanced by Rail Corporation. 20 The Workers Compensation Commission Rules 2006, r 15.9(1) is in the following terms: "Where the parties, or some of the parties, to proceedings in respect of a dispute agree as to the terms of an order to be made determining the dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order." 21 In the Procedural Tables to the Workers Compensation Commission Rules, PT 4.147 it is stated that finalisation of Commission proceedings will occur in circumstances including consent determinations made by the filing of terms. Reference is made to r 15.9. 22 It was submitted that the proceedings of the Commission were finalised before the Acting Deputy President delivered his decision on appeal because the short minutes of order had been filed. 23 The evidence falls short of direct proof of the filing of the 2 November 2007 letter and its enclosure. I was asked to infer that the documents had been lodged in accordance with the registration clerk's instructions. 24 I am not prepared to do so. No evidence was adduced from the registration clerk. No copies of the documents received back from the registry were in evidence. Nor were any copies sealed by the registry in evidence. Even more telling against the drawing of the inference is the letter from the Registrar stating that the Commission had no record of ever receiving the short minutes of order for filing and no record of receiving any notification from the parties that the matter had been resolved. 25 In the absence of inference the statement in the Procedural Tables to the Workers Compensation Commission Rules, PT 4.147 is not satisfied. 26 Furthermore, Workers Compensation Commission Rules, r 15.9 does not operate to finalise proceedings of the Commission upon filing. It contemplates an order by the Commission in terms of the agreement of the parties. 27 No such order was made in this case. I reject the second argument of Rail Corporation. 28 That brings me to the privative provision. The Workplace Injury Management and Workers Compensation Act, s 350 is in the following terms: "(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Act is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission." 29 Appeal rights are provided by the statute. The Workplace Injury Management and Workers Compensation Act, s 352(1) provides that a party to a dispute in connection with a claim for compensation may, with the leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an arbitrator. 30 The Workplace Injury Management and Workers Compensation Act, s 353(1) provides that if a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal. 31 A privative provision is effective to exclude further review if it satisfies the requirements in R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 at 615: "They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." 32 The principle has been considered on a number of occasions. Of recent note is Batterham v QSR Ltd [2006] HCA 23, (2006) 225 CLR 237 at 248-249. The majority of the court noted that it was important to recognise that a privative clause has no work to do if the decision in question was made according to law. The hypothesis for consideration is that the decision in question is infirm in some respect. 33 There must be some doubt as to the efficacy of the decision of the Acting Deputy President in light of the resolution of the dispute by the parties. 34 There is no suggestion that the decision of the Acting Deputy President was other than a bona fide attempt to exercise power. It clearly related to the subject matter of the Workers Compensation Acts and, in my view, it was reasonably capable of reference to the power given by the legislation. The short minutes of order were not filed to invoke the statement in the Procedural Tables to the Workers Compensation Commission Rules, PT 4.147. Nor was there an order of the Commission in terms of the Workers Compensation Commission Rules, r 15.9. 35 In my view, therefore, the second declaration cannot be made. The Workplace Injury Management and Workers Compensation Act, s 350 prevents it. 36 That does not mean that Rail Corporation is devoid of remedy. It may ask the Commission to reconsider the matter and rescind the decision of the Acting Deputy President under the Workplace Injury Management and Workers Compensation Act, s 350(3). If the decision of the Commission is adverse to Rail Corporation in point of law, it has its remedy by way of appeal from a Presidential member, if the Commission is so constituted, to the Court of Appeal under s 353(1).